Dow AgroSciences LLC v. National Marine Fisheries Service

Feb 21: In the U.S. Court of Appeals, Fourth Circuit, Case No. 11-2337. Appealed from the United States District Court for the District of Maryland, at Greenbelt. In summary, the Appeals Court reversed, the agency's biological opinion vacated, and the case remanded by published opinion.

 

    In this appeal, the Appeals Court decides whether a "biological opinion" (BiOp) issued by the National Marine Fisheries Service

(Fisheries Service or the Service) to U.S. EPA is arbitrary and capricious under the Administrative Procedure Act. The BiOp,

which the Fisheries Service provided as part of the EPA's process of reregistering the pesticides chlorpyrifos, diazinon, and malathion, concluded that these pesticides would jeopardize the viability of certain Pacific salmonids and their habitat and that the pesticides could not be reregistered and therefore used without substantial restriction.

 

    Three manufacturers of the pesticides commenced the legal action, challenging the BiOp by contending that it rested on numerous unsupported assumptions and conclusions and faulty analyses and that therefore it was arbitrary and capricious. The district court, unpersuaded, granted the Fisheries Service's motion for summary judgment, finding that the BiOp was rationally supported by the "voluminous facts and studies considered by the [Fisheries Service]."

 

    The Appeals Court ruled, "On appeal, we reverse, concluding that the BiOp was not the product of reasoned decision-making in that the Fisheries Service failed to explain or support several assumptions critical to its opinion. To enable a renewed agency process, we vacate the BiOp and remand this case to the district court with instructions to remand it to the Fisheries Service for further proceedings consistent with this opinion."

 

    In its conclusion, the Appeals Court said further, "In sum, the Fisheries Service's November 2008 BiOp relied on a selection of data, tests, and standards that did not always appear to be logical, obvious, or even rational. While the Service may have had good and satisfactory explanations for its choices, the BiOp did not explain them with sufficient clarity to enable us to review their reasonableness. For that reason, we conclude the BiOp is arbitrary and capricious. In reaching this conclusion, we have addressed what we consider to be the more obvious flaws, but others are claimed to exist. We have not addressed all of the Pesticide Manufacturers' complaints because, on remand, they can be aired and addressed in the renewed agency process. We find it sufficient at this point to vacate the BiOp in its present form and require the Fisheries Service to address not only the flaws we identified but also any additional matters that may be raised on remand. . . "

 

    Access the complete opinion (click here). [#Toxics, #CA4]

 

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